Thoughts of an activist lawyer

Monthly Archives: December 2011

Was both sad and disappointed when the Integrated Bar of the Philippines took the stand that the impeachment against Chief Justice Renato Corona was an affront to the independence on the Judiciary. Sad because I hold the IBP very dearly, having served as its Presidential Assistant for Human Rights for two years during the incumbency of President Feliciano Bautista. Disappointed because knowing almost all of its national officers personally, including its incumbent President Roan Libarios whom I had the pleasure of serving with when he was National Vice-President of the IBP, I do not understand how they can misread the importance of impeachment as a constitutional tool for public accountability of public officers. It was indeed a wrong statement.

The IBP anchored its stand on the false belief that any and all means to promote accountability on the part of our magistrates is an affront to the Judiciary. Nothing can be farther from the truth. When the Constitution made the Supreme Court a co-equal branch of government, it did so mindful that there was a need to promote both independence and accountability of our magistrates. To achieve independence, the Constitution gave the Court both fiscal autonomy and security of tenure for all magistrates to serve until age 70. But to balance this independence, the Constitution included the remedy of impeachment to remove magistrates with otherwise fixed terms should they commit culpable violations of the Constitution, betrayal of public trust and graft and corruption. To provide the Court only with means to make it independent but bereft of an instrument of accountability would be to make a monster out of our courts. Hence, contrary to the position taken by the officers of the IBP, impeachment is a constitutional tool to promote accountability and not the sword of Damocles that it portrayed it to be.

Furthermore, as I argued in my paper which I delivered only this month in Hong Kong University on the occasion of the 4th International Conference of the Asian Society of Constitutional Law, the impeachment is a tool by which our policy makers, both from the House of Representatives and the Senate, can uphold the supremacy of the Constitution particularly on the issue of Corona’s appointment as Chief Justice. Normally, legal formalism demands that we accept as final and executory decisions made by the Supreme Court particularly where it interprets the Constitution. In Angara v. Electoral Tribunal, the Court declared that when it declares an act of any branch or instrumentality as unconstitutional and hence, null and void, this is not an exercise of “judicial supremacy”, but one that “upholds the supremacy of the Constitution”.

But what happens when the Court abdicates this duty to uphold the Constitution as it did in De Castro v. JBC when it resorted to constitutional draftsmanship in upholding Corona’s appointment as a midnight Chief Justice in a manner contrary to the language and intent of the Constitution? Are all the other branches of government precluded from defending the Constitution? Certainly not.

All public officers from all branches of government took an oath to uphold the Constitution. Here, the remedy is clearly impeachment, as the issue to be resolved by our policy makers will include that of the correctness and the wisdom of the Court’s ruling in De Castro. Surely, the people that gave life to the Constitution did not intend to grant unto the Court a monopoly of upholding the supremacy of the highest law of the land.

As correctly observed by Senator Joker Arroyo, Article 1 of the articles of impeachment will involve purely legal issues which includes the constitutionality of Corona’s acceptance of the post of Chief Justice.

I would also have appreciated it if the IBP’s leadership attempted to consult its members prior to issuing its statement against the impeachment of Chief Justice Corona. Certainly, as the compulsory national organization of lawyers, there is virtue in hearing what its members, all of whom are trained in constitutional law, have to say before issuing a statement that appears to bind all of its members. As it turned out, I am a bona fide member of the IBP and I have been whole-heartedly supporting the impeachment of Corona as a means of strengthening the constitution and the Court as an institution. My leaders in the IBP did not consult me before they issued their official position despite the fact that the articles of the IBP do contain a provision on consultation with its members. I am now constrained to put on record the fact that I do not approve of the IBP stand and that I have not authorized them to speak on my behalf on this particular issue. This is sad, but necessary.

In any case, I am pleased that the House of Representatives chose lawyer Mario “Ayo” Bautista to lead its panel of private prosecutors in the impeachment trial. Ayo was my boss during my first year of litigation practice and I know him to be a brilliant and dedicated litigator. With him on board, I am sure that the people’s interest would be promoted and safeguarded in the impeachment trial.

I’m sorry to write a serious article for my last column for the year. Rest assured, I will try to be less serious in the upcoming New Year.

Happy New Year to one and all!

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Am very much bothered by pronouncements made by the members and the chairman of the House Committee on Justice that they will abandon the impeachment proceeding against Justice Mariano del Castillo. The reason given was that the House could not handle the prosecution of the Corona impeachment and that of del Castillo at the same time. This is a lame excuse. To begin with, it is the constitutional duty of the committee to deal with all impeachment complaints and act as prosecutors for all impeachment proceedings. For the committee to abandon an otherwise meritorious impeachment complaint because they’re doing too much already is itself an abdication of a constitutional mandate. Worse, it may send the message that the impeachment of the Chief Justice Corona is not about justice, but as Gloria Arroyo and her cohorts have been saying, part only of a political vendetta. Why?

Del Castillo’s impeachment is all about morality. It is about what is right and what is wrong. It is good versus evil. It is wrong to steal, be it under the laws of God or the laws of men. Plagiarism, any which way you look at it, is thievery. It became robbery when Del Castillo’s ponencia even twisted the already plagiarized work of others to support the exact opposite of the thesis submitted by the plagiarized authors: that is, that victims of mass rape during World War II are entitled to the legal remedy of reparations. It may even be akin to genocide not only because the root word of “plagiarism” was derived from murder, but also because on its face value, the Del Castillo ponencia added insult to the injury of the victims when the decision declared that there was no non-derogable prohibition on rape as a war crime during World War II. Ergo, it may have been allowed. It even insinuated that rape committed against civilian populations was not even criminal during World War II.

It was precisely this kind of a ponencia that made the whole nation to think about the fitness of the justices of the High Court to sit where they do today. In the minds of many, why bother to have a Supreme Court when they are not able to give the victims of gross injustice, even the semblance of a legal remedy?

This will also explain why despite legal formalism which requires the people to accept the decisions of the high court as being final and executory, the people questioned the wisdom of the Supreme Court’s decisions on the Truth Commission and the temporary restraining order on the watch-list order against Mrs. Arroyo. These decisions, like the exoneration of Del Castillo for plagiarism and the court’s order to admonish the UP 37, were deemed to be contrary to morality and natural justice. It was the Del Castillo impeachment complaint that opened the public’s mind to the reality that while the court is referred to as “supreme”, its decisions need not be infallible. Without the Del Castillo impeachment complaint and the ensuing public debate surrounding it, it would have been impossible to rally the people around President Aquino today in damning an Arroyo court.

And lest we forget, Mrs. Arroyo and her cronies are now highlighting that Corona’s impeachment is all about political vendetta. The latest pronouncement is that the Corona impeachment was the President’s way of getting even with the court for awarding Hacienda Luisita to its farmer beneficiaries. Of course I don’t believe this. On the contrary, I have maintained that Corona should have been impeached on Day One of PNoy’s presidency. But pubic opinion is not what lawyers and professors believe. It is about what the average person in the street thinks. Abandon the Del Castillo impeachment and Juan de la Cruz will think that perhaps, Arroyo and her cohorts are correct—that the Corona impeachment is not about what is right or wrong. It is about decisions that proved to be painful to the powers that be. And yes, Rep. Arroyo still commands billions in resources sufficient to support a public relations campaign to portray the Corona impeachment as nothing but vendetta. Dismiss the Del Castillo complaint and you remove the moral dimension in the impeachment process. This is exactly what the Arroyo public relations machinery needs. Could it be that this is the real plan of those who want the earlier impeachment complaint to be dismissed?

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So it happened. A few days after my column last week where I exhorted the impeachment of both Chief Justice Renato Corona and Associate Justice Mariano Del Castillo, the President, weary of yet another TRO from the Arroyo court -asked his allies in Congress to impeach the Chief Justice. And while I have maintained that this should have been done since day 1 of his administration, its certainly better late than never, as the saying goes.

Critics though have claimed that the impeachment will undermine the independence of our courts. Far from it. In the first place, it was Corona who did it to himself. He agreed to become an unconstitutional Chief Justice when he assumed the office knowing fully well that both the language and the spirit of the Constitution barred his appointment. You cannot undermine the judiciary when you remove an unconstitutional appointee. On the contrary, you uphold the supremacy of the Constitution by doing so.

True, the Constitution defines judicial power as including the power to declare any act of any branch or instrumentality of government as null and void where there is grave abuse of discretion resulting in lack of or excess of jurisdiction. Included in this function is the duty to declare as illegal any act that is contrary to the constitution. But this is not a monopoly of the Courts. All public officers are required to uphold the constitution and the laws of the land. Surely, when it is the Supreme Court that makes a mockery of the Constitution, as it did in the case of De Castro v. JBC where the midnight appointment of Corona was upheld, the executive is duty bound to resort to the constitutional tool of impeachment to uphold the constitution and accountability of public officers.

It must be underscored that while the Constitution refers to the Senate as an “impeachment court”, the language of the organic act should not deceive the Senate. They are a court only for the purpose of determining whether the impeached official should be removed from office. This does not make them a court of law. They are still policy makers who must formulate policy on whether one should continue in public office. They should not make the mistake, as argued by Estelito Mendoza during the Erap impeachment, of acting like a court hearing a criminal case. Public office is still a privilege and not a right. When the Constitution vested in elective representatives of the people the power to remove impeachable officers, it was their will to include the issue of fitness for a public office as a policy issue and not a criminal inquiry. The standard is hence not proof beyond a reasonable doubt, nor any of the standards recognized by our rule of evidence. The sole criterion is fitness to remain in office from a policy point of view. While the grounds for impeachment should still be proven, the Senate though is free to decide on the basis of other considerations considered relevant in formulating policy. Otherwise, the power to impeach and sit as an impeachment court should have been vested in the judiciary.

So how will the Senators possibly vote on the Corona impeachment case? Well, while it is still too early to tell, my crystal ball shows the following: all four LP Senators: Drilon, Recto, Pangilinan, and Guingona will vote for impeachment. They have to. When we say impeachment is a political process, it also means that political parties, at least in the United States from whom we copied our constitution, vote along party lines. Expect the four to be joined by Senators Trillianes, Estrada , and Lacson, all of whom have proven to be staunch political nemesis of Corona’s boss, CGMA. Add to the list Senate President Enrile who should know that voting in favor of Malacanang’s wish would be the surest way of safeguarding his post as head of the Senate. Voting with JPE would be his majority floor leader Sotto and his prodigee, Honasan. That’s a sure 10 votes for impeachment.

Those who will most likely cast negative votes would be Senators allied with or sympathetic to CGMA. This would include Senators Revilla , Lapid , Arroyo, and Marcos. That’s a sure 4 votes against impeachment.

The rest, 9 in all , I think, are undecided: Santiago , in my mind, is undecided because while she appreciates Malacanang’s support for her ICC candidacy, still, she has been very clear that she does not think Corona should be impeached. Angara, as a veteran politician, should be open to offers. The same goes for Legarda. Villar and his block, including the two Cayetanos, have been rabid anti-Malacanang Senators. Palace operators may have to strike a deal first with the Villar block, if they want to have the numbers to remove Corona. Osmena is undecided because he has been maverick lately, opposing even the nomination of P Noy’s Tito, Domingo Lee, as Ambassador to China. This means that Osmena does not believe in voting along party lines. And finally, Escudero is an undecided because he normally defers to his elders in his own fraternity. One of his esteemed senior brod, former Chief Justice Renaldo Puno, is seen as being sympathetic to Corona as in fact- he even resigned earlier than his 70th birthday to facilitate Corona;s appointment. Pimentel is an undecided because he has been quoted as saying he will decide on the basis of evidence.

We need 16 Senators to remove Corona. But anything can happen. As we have known all along: never underestimate the vast powers of the President

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It’s difficult to take a stand in the on-going spat between P -Noy and the Supreme Court. To begin with, the problem would not have occurred if only P-Noy was true to his word when he was campaigning for the presidency that he would never recognize an unconstitutional Chief Justice. P-Noy, while a non-lawyer, certainly received good advice when told that Renato Corona’s appointment was unconstitutional since it was made when there was an election related appointments ban. The language of the Constitution was certainly clear: “two months prior to the next presidential elections, x x x the president shall not make any appointments x x x”.

Writing more than a year ago, I was emphatic that P-Noy, as the then presumptive president, should be true to his word: “the presumptive president-elect must keep his promise not to recognize the legitimacy of an Arroyo-appointed chief justice for two reasons. First, he must honor the mandate of the sovereign people when they ratified the 1987 Constitution. Second, this has become a political issue already decided by the people when they gave the presumptive president-elect an overwhelming mandate.”

But P-Noy reneged on his word. While he refused to take his oath before the person whom he described as an “unconstitutional Chief Justice”, he nevertheless still invited Corona to his own inauguration. Moreover, in his words and deeds, he would recognize him as Chief Justice all these time that he has been president.

P-Noy’s failure was fatal to his own cause not just because it sanctioned a violation of the Constitution, but also because in recognizing Corona as de jure Chief Justice, it was P-Noy himself that emboldened Corona and the Arroyo Court to fulfill their mandate to their appointing power: Gloria Macapagal-Arroyo. It seems to me thus that P-Noy has lost his right to complain about the so-called partisan decisions of Corona and the Arroyo Court. This was what the Constitution sought precisely to prevent when it provided for the appointments ban preceding an election: loyalty to the appointing power rather than to the nation.

It does not help any that P-Noy has complained about decisions which favor Mrs. Macapagal-Arroyo, but do not appear to be patently wrong. Take for instance the constitutionality of the ill-fated Truth Commission. One does not have to be a rabid pro-Arroyo supporter to know that the president cannot, through an executive order, create an agency with powers that only Congress may vest. Other legal fiascos fall also under this category: the prohibition on revoking appointments prior to the expiration of their fixed terms, and the recent temporary restraining order on the Department of Justice’s power to issue Watch Order Lists -which no less than the Justice Secretary herself has admitted to the Supreme Court, is without legislative basis.

To make matters worse, P-Noy, even after he has recognized Corona, still had a constitutional tool to rein in the court back into the fold of the rule of law. This is the process of impeachment. He could have used it not just once, but at least twice. The first could have been used against Corona himself for agreeing to an unconstitutional appointment. Had impeachment been used against him then, it would have avoided a constitutional crisis: the President would recognize Corona only as a de facto Chief Justice and leave its legality to be decided by the representatives of the people sitting as an impeachment court. In such an impeachment proceeding, what would have been resolved are (1) the legality of the appointment and (2) whether the acceptance of such would amount to a betrayal of public trust.

The second opportunity was the impeachment complaint lodged against Mariano Del Castillo for a plagiarized and twisted decision involving the denial of a legal remedy to those who were raped by the Japanese during World War II. While plagiarism and the twisting may not be as despicable as bribery and graft, still, as the saying goes, plagiarism is theft nonetheless. What would have been achieved through impeaching Del Castillo would be a message that the President is serious in the discharge of its role as chief executor of the laws of the land -even as against a Justice of the Court.

Perhaps, what could have further emboldened Corona and given him the idea that he already has the upper hand in his battle with the Executive is that during a recent foreign visit, P-Noy even confidently stated that his tussle with the High Court is over.

So while we completely sympathize with P-Noy in his current confrontation with the Court, the reality is that he himself invited into his house the Devil that now haunts him. What is regrettable now is that having failed at first instance to do what is right, he is now destroying the very institution that that is indispensable in achieving public order in society. With his repeated attacks against the Court, he has achieved much in destroying the people’s faith in the Court as an institution. If he thinks he is doing the country a service by doing this, he better think again. For when people lose faith in the courts, they will have no further recourse but to take the law into their own hands.

But all is not lost. Justices Corona and Del Castillo are both guilty of betrayal of public trust. The constitutional remedy is to remove them through the constitutional process of impeachment. P-Noy does not only command the loyalty of both Houses of Congress. He also has the overwhelming support of the people. He can certainly cause the successful impeachment of these Justices. Meanwhile, let’s spare the institution. You do not rebuild an already damaged institution by laying bombs at its foundations.

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Businessman and civic leader Domingo Lee is highly respected in the Chinese-Filipino community and business circles. His rise from relative poverty and anonymity to leadership in entrepreneurship and civic work is a testament to his competence, wisdom and will to achieve.

His achievements and potential for effective public service, however, are lost on some people. For instance, some have made an issue out of his age and his background as the former head of the Manila Economic and Cultural Office in Taiwan.

On the contrary, Lee’s age and prior contacts with Taiwan are two of his strongest assets. To those familiar with Chinese culture, China puts a premium on seniority. This explains why majority of Chinese leaders and statesmen are of the same age as Lee. Furthermore, although Lee’s former dealings have been with Taiwan, the reality is Taiwan is as Chinese as Beijing or Shanghai. Taiwan certainly shares the same history, culture and traditions as the mainland.

Even Lee’s fluency in English is being questioned. But isn’t Mandarin the language of diplomacy in Beijing? I would be more worried if we send an envoy to Beijing who is fluent only in English and not in Mandarin. I am sure that Lee’s fluency in Mandarin is one big reason why Beijing has readily given its agreement for his appointment.

Some were also surprised that Domingo Lee has not read a recent issue of the Global Times, China’s English-language newspaper on foreign policy, that reportedly urged war on the Philippines and Vietnam for being the two “noisiest-troublemakers” in the Spratlys dispute.

I doubt in the first place if many Department of Foreign Affairs officers or Filipinos claiming to be experts on foreign affairs read the Global Times, specifically that issue. Moreover, what should we expect from an ambassador-designate? Do we expect him to engage his receiving state in a word war prior to his presentation of credentials? Certainly not.

I have always been supportive of the career officers at the Department of Foreign Affairs since I worked in the House Committee on Foreign Affairs almost 25 years ago. I have always believed that they are professional, competent, and often underutilized by their appointing powers, bypassed in favor of political appointees. But it is also a fact that unlike other Presidents, P Noy has made unprecedented appointments of career diplomats as Heads of Missions of our embassies abroad. No other President has done as much. I would hope then that the noisier career officials of the department would defer to the President’s choice of Lee.

For one, it is during these trying times in Philippines-China relations that we need an envoy to China who has the utmost trust and confidence of the President. We need an emissary who the Chinese know can talk to the President at any time of the day or night, say in connection with backdoor negotiations for a peaceful solution to the Spratlys dispute. Moreover, precisely because of the current kinks in our relations with the new superpower, there is more reason that we need an emissary that has proven his loyalty to the country and the President. I doubt if the other aspirants to the post, nor their respective tycoon backers, can come even close to Lee’s credentials in this regard.

This is the kind of effective diplomacy Lee will bring to the post of ambassador in Beijing. He is at home with Mandarin, the language of diplomacy. He will win many friends with his fluency in the official language of the People’s Republic of China. His age will add to his stature. His business acumen and common sense will enrich his work. His ties with the Chinese-Filipino community in Manila will help open doors. A Filipino who traces his roots to China, Lee brings the best of two worlds to his office.

No doubt, this businessman and civic leader has the stuff of a good ambassador, an effective representative of the Philippines to Beijing. He will not embarrass President Aquino, but will be at his best, as he has done all his life. He will not be a flashy envoy, but a quiet worker, leading the Philippine embassy staff with professionalism, promoting and defending the national interests of the country in a foreign capital with courage, dignity and a personal touch.

And mind you, he comes to his post not only with institutional assistance from the Department of Foreign Affairs but also from the Institute of International Legal Studies of the UP Law Center.